(Content Note: This article contains descriptions of gendered police violence and miscarriage.)
Sometimes President and CEO of JustLeadershipUSA DeAnna Hoskins thinks about a pregnant woman she met almost 20 years ago while Hoskins was incarcerated. After jail administrators denied the woman’s request for an abortion, her family filed a lawsuit, arguing that the institution was denying her constitutional right to seek an abortion. The woman’s efforts were successful, but the suit reflects the considerable lengths many incarcerated pregnant people have to go to exercise any semblance of reproductive choice.
“I often think 20 years later, how would her life have been different had she been forced to have that baby?” asked Hoskins.
It’s a question that more pregnant people are going to be forced to answer with the U.S. Supreme Court’s recent overturn of Roe v. Wade. While incarcerated pregnant people now face even higher and harder obstacles to obtaining an abortion, even under Roe, lawsuits were one of the few avenues through which incarcerated pregnant people could contest anti-abortion policies or the denial of their right to terminate their pregnancies.
In 2008, the ACLU successfully filed a class-action lawsuit on behalf of all incarcerated women in Missouri ensuring that their right to abortion wouldn’t be denied. In 2015, a 29-year-old woman filed a lawsuit against an Alabama sheriff for refusing her an abortion without a court order, and just last year the ACLU assisted an incarcerated woman in Nebraska in suing the state’s Department of Correctional Services after being denied an abortion. Eventually, the woman was granted a temporary restraining order allowing her to leave the facility and successfully obtain her abortion.
As the country grapples with losing the protections afforded by Roe and what that means for pregnant people who live in areas hostile to abortion, advocates like Hoskins and attorneys with the ACLU are reminding the public that even under Roe, abortion access for those imprisoned and jailed across the country was already incredibly fraught.
“The courts have held that the right to abortion is one of the constitutional rights that people keep even when they’re incarcerated,” says Corene Kendrick, deputy director of the ACLU’s National Prison Project. “But in practice, courts have allowed prisons and jails to put up policies and restrictions supposedly for penological or security reasons that make it extremely difficult for people to access abortion.”
Insurmountable barriers to bodily autonomy
Over the past four decades, women’s incarceration has risen dramatically, resulting in a growing number of women imprisoned during their primary reproductive years. Roughly 3,000, or 4%, of people entering state prisons per year are pregnant. Meanwhile, jails—where the majority of women are incarcerated and which are marked by shorter stays—detain more pregnant people and are thus the site of more frequent abortion requests.
Pregnant people incarcerated in states hostile to abortion are significantly more likely to find themselves navigating more restrictions. According to research compiled for the Pregnancy in Prison Statistics (PIPS) Project, 77% of state prison systems in states that are hostile to abortion allowed incarcerated people to terminate their pregnancies as compared to 100% of prison systems in nonhostile states. Second trimester abortions were allowed for incarcerated people in 67% of non-hostile states and only 38% of hostile states.
While incarcerated pregnant people’s ability to access abortion is ostensibly determined by the policies of the state in which they are detained, many facilities have abortion policies that are unwritten or shaped at the whim of facility staff, local sheriffs, prison wardens, or Department of Corrections administrators. Essentially, the personal politics of those who work in the facility can override any state-codified pro-abortion policies and affect the medical care incarcerated pregnant people are entitled to.
Kendrick cites how many incarcerated pregnant people seeking abortions are required to pay for not only the procedure but also their transportation from the facility to where the procedure will take place. Some facilities charge an additional fee for the time of the corrections officers that escort them to their appointment. In Minnesota, reproductive justice advocates fought back against a policy requiring pregnant people seeking abortions to also pay for the “wear and tear” on the vehicle that transported them to their appointments.
In over half of the prisons surveyed in the PIPS Project, incarcerated pregnant people were required to pay for their own abortion care due in large part to how incarcerated people are excluded from Medicaid coverage. In federal facilities, the Hyde Amendment forbids the use of federal funds on abortions, except to save the life of the pregnant person or in cases of rape or incest. Kendrick says that this creates an “insurmountable barrier” since the vast majority of incarcerated people are indigent, particularly people who are in jail because they can’t afford bail.
“That’s a policy that really isn’t in place for any other outside medical procedures while you’re incarcerated,” Kendrick said. “The reason why [it’s in place for abortions] is some prison and jail systems have argued that the abortion procedure is ‘elective.’”
Additionally, if incarcerated pregnant people contest anti-abortion policies, that process can come at an immense financial cost. Hoskins remembers the woman she met while incarcerated and what she endured to fight for control over her own body. The woman had to pay out of pocket for a private attorney because her case wasn’t covered by public defenders—according to the Constitution, public defenders only provide legal representation in criminal cases.
“She had to have the financial means to hire the attorney, to file the paperwork, and to cover the abortion,” Hoskins said. “If I can’t pay bail to get out, and I’m already oppressed and living in poverty, that’s going to be impossible.”
Money isn’t the only resource necessary when seeking an abortion inside—one also urgently needs time. There’s a narrow window in which one is able to terminate a pregnancy, which poses a unique barrier for incarcerated pregnant people who sometimes have to request a medical release far in advance. Some clinics offering abortions also require multiple consultations and visits before the procedure, creating additional challenges for pregnant people incarcerated in more remote locations or those in states like Texas where abortions are banned after six weeks.
Prison and jail policies aimed to serve the facilities’ “penological interests” can end up creating almost endless avenues through which they can deny abortion access. For prisons, that is made insidiously clear through the discrepancy between federal standards and actual practices.
“Criminal law says that incarcerated people can’t consent to sex, so it means basically they were legally raped, most likely by an officer,” Kendrick said. “If a person becomes pregnant as a result of rape while incarcerated there’s two things at play.”
Kendrick explains that imprisoned women who become pregnant while inside should have access to abortion through stipulations provided in the Prison Rape Elimination Act (PREA), a set of standards established in 2003 to deter sexual assault in prison, particularly at the hands of correctional officers. Under PREA, prison officials are supposed to provide any incarcerated person who becomes pregnant as a result of rape with access to all lawful pregnancy-related medical services. Further, while the Hyde Amendment bars the use of federal funds to pay for abortions, the Amendment offers exceptions for cases of incest, rape, or to save the life of the mother.
“Right now those people, regardless of what state they’re in, should be getting access to abortion services,” Kendrick said.
It remains to be seen how the Dobbs decision will change this given that these are simply federal standards rather than federal law. Even still, the logic by which PREA assures that incarcerated pregnant people are granted abortion access also makes the facilities in which they are incarcerated culpable for allowing rape and other forms of sexual violence to occur.
“If a woman entered the system five years ago and now she’s pregnant, then we know there’s sexual abuse happening in that system,” said Hoskins. “But what is the actual choice that the women have? Because if the state aborts the baby or gives her that choice to pay for an abortion, then the state is admitting malicious behavior in that they have failed to protect those people who have been sentenced to them.”
Pregnancy as punishment
The severe neglect of incarcerated pregnant people who do carry their pregnancies to term either out of free will or by force makes it clear that there is a double bind when it comes to reproductive care inside: not only do prisons and jails create barriers for people seeking abortions, they also fail to provide quality prenatal care.
Dr. Carolyn Sufrin, associate professor of gynecology and obstetrics at Johns Hopkins University, says that when prisons and jails deny incarcerated people access to abortion, it’s not because they value pregnancy and parenthood. The actual conditions that incarcerated pregnant people endure point to an environment that is, at best, apathetic to their needs.
“When these pregnant folks are conscripted and forced to continue pregnancies they had wanted to terminate, they’re not then continuing these pregnancies in environments where [pregnant people] uniformly have access to consistent and quality prenatal care or where they can birth with dignity,” Sufrin said.
Sufrin has focused much of her research on the reproductive health care of incarcerated women. In 2017, she founded Advocacy and Research on Reproductive Wellness of Incarcerated People, a research team that addresses reproductive health care issues for the incarcerated and engages with key stakeholders to make “full-scope, compassionate reproductive health care” accessible to everyone inside. Sufrin’s work has also included understanding not just the policies that determine the lives of incarcerated pregnant people but also the moral and political ideologies that underpin these policies.
Some view prison abortion restrictions as an example of how the carceral system values motherhood, uplifting it as a crime deterrent or an opportunity to assume an identity that could lead one away from crime. Sufrin however notes how carceral facilities actively neglect incarcerated pregnant people in practice and policy. Incarcerated pregnant people have no control over the conditions in which they give birth, with limited access to prenatal care and sanitary environments. They’re likely to give birth without any personal support and may still be shackled during childbirth, despite the practice being illegal in at least 37 states. These practices reveal how maintaining and exercising control over pregnant incarcerated people is what truly lies at the heart of abortion restrictions inside.
“They’re not allowed to mother, they have to go back to prison or jail, and they’re separated from their newborns, in some cases almost immediately in part because some hospitals have written or unwritten practices where they won’t allow the infant and the mother to be in the same room,” Sufrin said. “Preventing someone from terminating a pregnancy, by virtue of them being incarcerated, isn’t reflective of valuing pregnancy and motherhood—it’s just forcing them further into an environment where they’re not valued.”
Reproductive health care for women inside is notoriously abysmal. Advocates have noted how poor nutrition offered in prison and jail also has dire consequences for incarcerated pregnant people who often are neither offered additional meals nor given the opportunity to request meals at times of the day when they’re not experiencing symptoms like nausea or abdominal pain. Incarcerated people also cannot shape their sleeping schedules or refuse to work, which can be especially detrimental to a healthy pregnancy. Further, incarcerated pregnant people entering prison and jail with opioid dependency can be denied access to methadone, without which they are at higher risk for miscarriages.
According to a 2010 nationwide survey conducted by the National Women’s Law Center analyzing prenatal care for incarcerated women, which included routine medical examinations, HIV screening, nutrition counseling, shackling policies, and family-based treatment alternatives, only 30 states received passing grades. Twenty states and Washington, D.C., received D’s or F’s, and only one—Pennsylvania—received an A-minus.
“[People who were pregnant while incarcerated discuss] the whole experience as being traumatizing every step of the way—tripping over themselves because they’re chained, being in a hospital in chains and an orange jumpsuit waiting for an elevator and everybody’s staring, the trauma of your baby being taken from your arms and not being allowed to hold them,” Sufrin said. “All of these things are memories that are seared into people’s minds and conjure trauma.”
The degradation of parenthood by the carceral system also comes through attempts to thwart the reproductive capacities of incarcerated people through forced sterilizations or policies that restrict their childbearing. Out of the 22 state prison systems featured in the PIPS study, five allowed permanent and reversible contraception, while six only allowed permanent contraception. Forced sterilization, in particular, or permanent contraception administered without consent, has become a more widely publicized issue impacting women in prison, most notably in California, where between 2006 and 2010, over 100 incarcerated women were unlawfully sterilized.
Meanwhile, in 2017, Tennessee Judge Sam Benningfield created a sentence-reduction program incentivizing both incarcerated men and women to receive either vasectomies or Nexplanon by shaving 30 days off of their jail sentences. Benningfield said that he hoped it would help people ”make something of themselves” and “encourage them to take personal responsibility.” By 2018, the program was reversed amidst public outcry.
More recently, in 2019, a formerly incarcerated woman in Texas was ordered to stop having children as a condition of her probation. Sufrin cites this case as a “clear connection between the prison-industrial complex and population control.” In light of the Dobbs decision, anti-abortion laws are only widening the scope of how the carceral state can exercise power over people’s reproductive bodies by creating new avenues for criminalization.
Ending prison birth
The abysmal prenatal care offered to incarcerated people is something that Pamela Winn understands well both through her work as an advocate and the personal experience that brought her to that work. Not long after Winn was charged with a 78-month federal prison sentence, she learned that she was pregnant and would be carrying her pregnancy to term in a Georgia detention center.
“I was only charged at this point, so I was still going back and forth to court,” Winn said. “Each time they would transport me I would be shackled, and one of the days going out to court the shackling caused me to fall.”
After her fall, Winn was never given a check-up, but she requested a medical appointment soon after when she began experiencing bleeding. After two weeks of ignored requests, Winn was finally seen by doctors, who told her the bleeding she was experiencing was normal. But as a registered nurse specializing in women’s health, Winn knew her condition was far from normal. So began a string of medical requests from Winn, slow responses and delayed appointments from the facility, and finally, an unthinkable tragedy.
“Over seven weeks after the incident I was taken to the ER, and of course they turned me away because [the incident] was weeks old so it was no longer an emergency,” said Winn. “They stated that I needed to see an obstetrician or a perinatologist because [due to] the fall and the bleeding I was considered high risk. But I was told by the corrections officers that they could not take me anywhere else because they were only approved to go to the ER at that point.”
It would be another eight weeks before Winn was given an ultrasound, and even then, the obstetrician who conducted it wasn’t able to interpret the results. Winn had to place a request for yet another appointment and bear an additional four-week waiting period. In that time, she suffered a miscarriage. Winn says that after being locked in her cell at 10 p.m., she began hemorrhaging so badly that “there was blood all over [her] cell,” but it was almost 2 a.m. before anyone came to check on her. Prison staff called 911 to transport her to the hospital, where she was met by marshals who “immediately shackled [her] ankles and wrists to the bed.”
“That was how I endured the remainder of my miscarriage—with two male officers between my legs that refused to give me any privacy,” Winn said. “They also threw my baby in the trash because I had passed it in my linen, and they threw it away. After that—on top of all of those things—they placed me in solitary confinement.”
When Winn returned home from prison, she would find that organizations had been attempting for at least a decade to pass anti-shackling to no avail. Despite the doubts of some disillusioned organizers who had long been trying to get their policy proposals off the ground, Winn felt that she couldn’t take no for an answer. Her own advocacy started with a petition on Change.org where she shared her story and spoke to the need for national anti-shackling legislation.
Winn’s petition garnered over 100,000 signatures in less than a month and caught the attention of Sen. Cory Booker, who invited her to Capitol Hill to testify in support of the Dignity for Incarcerated Women Act that he had drafted alongside Sens. Elizabeth Warren and Richard Durbin and then-Sen. Kamala Harris. While that federal legislation ended up not passing, Winn connected with the nonprofit #Cut50, now Dream Corps Justice, and began advocating for Dignity bills on the state level. In February 2018, Winn launched RestoreHER, an advocacy organization through which she has helped draft language for the First Step Act; pass anti-shackling legislation in Georgia; and usher in the passage of Dignity for Incarcerated Women bills in 21 states, the most recent being Alabama.
While Winn has trained her focus on eliminating the practice of shackling incarcerated pregnant people, her ultimate goal is ending prison birth altogether. The first step in realizing that goal in her home state of Georgia is through the Women’s CARE Act, a bill she helped draft that would administer pregnancy tests to women 72 hours after their arrest and allow them to be released on bond should they test positive. For pregnant people who have already been sentenced, prison time would be deferred until six weeks postpartum. Importantly, the bill would also require more accurate data collection on incarcerated pregnant people to better meet their needs.
“We don’t have to hear the horror stories of these women delivering in cells alone, or being ignored like I was,” said Winn. “[This bill] would resolve all of that.”
Ideally, the bill will help decrease Georgia’s infant mortality rates, which is one of the highest in the U.S. Additionally, it would provide pregnant people with more autonomy to decide their own prenatal care, to spend some quality time with their babies, to be able to breastfeed if they want to, and also to have ample time to make decisions about what happens to their child. In Georgia, new mothers have only a couple of hours or less to spend with their babies after delivery, depending on the discretion of the officer surveilling them. Afterward, they have a few hours to declare where their baby will go, with any indecision resulting in the child becoming a ward of the state.
Winn says the benefits of the CARES Act would also reach far beyond just the lives of incarcerated pregnant people as it would save the state money and alleviate the reliance on a carceral system that is already not designed to meet the needs of families and pregnant people, in particular. The enduring need to eliminate prison birth against the backdrop of Roe’s reversal further exemplifies the hypocrisies of lawmakers who seek to erode women’s reproductive choice while ignoring the health and welfare of marginalized pregnant people who do seek to carry their pregnancies to term. Organizers like Winn hope that incarcerated women don’t get excluded from these conversations.
“These women are not sentenced to lose their babies, they’re not sentenced to have to spend their time in turmoil wondering where their babies are and if they’re being taken care of, [or] when they get out to have to look for their child and fight to get their babies back,” said Winn. “I often say that the price that we pay highly exceeds the crime and far exceeds the sentence.”